World Intellectual Property Rights Day-2013: customs' role in protection of creativity

26th April has been designated as World Intellectual Property Day by the member states of the World Intellectual Property Organisation (WIPO), which is aimed at raising awareness of the role of intellectual property in our daily lives, and to celebrate the contribution made by creators, innovators and artists to the development of societies across the globe. The day is being celebrated each year, since 2001, by WIPO and its member states (which also includes Pakistan).
It provides an opportunity for people of all nations to reflect on the importance of creativity and innovation in building a better world, and also offers an ideal opportunity to promote, inform and teach the importance of intellectual property as a tool for economic, social and cultural development. The following article would indicate the role of Customs in protection of creativity and enforcement of intellectual property rights in Pakistan for security of the society.
This year, the theme of World IP Day is "Creativity: The Next Generation" which signifies its importance in shaping the innovations of the future. Creativity is an essential step in human development. The world needs people who can think for themselves, and who can create new things instead of copying familiar products and solutions. The creative development of the individual is an essential part of our continuing evolution as a whole and the aim of intellectual property is to promote conditions that help this creativity and innovative capacity.
We all have the capacity to create, thus creativity is common to the entire humanity. This creativity and inventiveness is responsible for improving our quality of life in every sphere. However, the younger generation, which is the future, has the capacity to dream in a better way than the older generation. The World IP day, therefore, would encourage the young people to reflect about the role of intellectual property in the changing world.
The primary objective of the World Intellectual Property day is to create awareness and to promote the protection of intellectual property on a world-wide basis. The organisation administers the World Trade Organisation's TRIPS Agreement which takes into account the need for each member country to provide for effective and adequate protection of intellectual property rights. Pakistan, being a member of WTO, WIPO and other allied International Conventions is bound to fulfil its obligations and modify the relevant laws in the light of TRIPS Agreement. This obligation also requires assurance that necessary structures and procedures would be in place to allow Customs authorities to assist IPR holders through administrative, judicial or ex-officio means to protect their interests. Although TRIPS Agreement recognises that Intellectual Property Rights are private rights yet, the states are responsible to assist the IPR holders in protection of their rights.
Throughout the world, the Customs administration's core function is to collect revenue and facilitate the genuine cross border trade. However, they are also required to regulate economy of the country by giving effect to trade policy of the country. They interdict illegal flow of contraband goods and prevent smuggling in order to provide protection to local industry.
The purpose of Customs law in Pakistan is also to attain the above objectives. In order to achieve this aim, the customs officers in Pakistan are not only empowered under the Customs Act, but are also authorised to implement a number of other laws which provide for restrictions or prohibitions in relation to importation or exportation of goods.
The Customs authorities are not only required to protect the economic interests of the country at its borders, but also need to actively facilitate the genuine cross-border trade. Thus they have to play a vital role in the growth of international trade and the development of global market place. Therefore, the efficiency and effectiveness of Customs can significantly influence the economic competitiveness of the country.
In order to fulfil our international obligations and to make our IP laws TRIPS-compliant, the following new IPR laws were promulgated as Ordinances, which incorporate therein requisite amendments in the light of TRIPS Agreement:
(i) Copyright Amendment Ordinance, 2000
(ii) Registration of Layout Designs of Integrated Circuits Ordinance, 2000
(iii) Industrial Designs Ordinance, 2000,
(iv) Patents Ordinance, 2000, and
(v) The Trade Marks Ordinance, 2001
Though the above Ordinances have been promulgated but subordinate legislation in the shape of procedural rules, which can ensure effective implementation is still under way. Pakistan is, therefore, under criticism from its trading partners for failing to provide adequate protection to the Intellectual Property Right holders. It is generally alleged that Pakistan's IPR system is ineffective. However, keeping in view the enforcement measures to be provided in line with Part-III of TRIPS Agreement, the Customs Act, 1969 was revised in the Budget 2004-05 and legal provisions of Section 15 of the Customs Act relating to prohibition and restriction on importation and exportation were revised in order to ensure compliance with IPR regime.
Articles 51 to 60 of the TRIPS Agreement relate to enforcement of IPRs by Customs, which provide for a mechanism for basic procedural requirements for a Customs border enforcement system. In order to facilitate the member countries, the World Customs Organisation (WCO) alsodeveloped model legislation. Based upon the above model legislation and in the light of amendments made in the allied IPR laws, the Federal Board of Revenue is in the process of drafting rules for implementation of TRIPS Border Measures.
The various agreements of WTO, including TRIPS, are a reality, which being a signatory Pakistan has to face. It is encouraging that Pakistan has already revised most of its IPR laws in accordance with the requirements of TRIPS Agreement and procedural rules are being drafted for enforcement purposes. However, enforcement continues to be a weak area, which needs to be addressed. The state of affairs not only makes us vulnerable to criticism but may also attract trade retaliatory measures from our trading partners. Therefore, appropriate steps need to be taken and piracy of all kinds of IPRs has to be checked.
Recommendations
i. There is an urgent need of creating awareness on the subject for which both public and private sector should play their roles for conducting an effective campaign on electronic and print media.
ii. Since research capabilities are currently lacking on IPRs and IP laws, it would be necessary to set up a Research Institute to undertake the required research to promote knowledge and awareness of IP laws of Pakistan as well as the intellectual property system of other countries.
iii. In order to fulfil our international obligations, it would also be appropriate that the TRIPS Agreement should be implemented in phases starting from mandatory provisions and then moving on to the optional requirements.
iv. The Customs procedural rules may be finalised in consultation with all stakeholders and IPO (Pakistan), on priority, and the same be notified in the forthcoming Budget.
v. In the last year's budget, legal provisions were added in the Customs Act, 1969, for setting up a Directorate General of Intellectual Property Rights, which would be a dedicated organisation for making effective implementation and enforcement of IPR related laws at Customs frontiers of Pakistan. This organisation needs to be made functional as quickly as possible.
(The writer is former Collector of Customs and a Resource Person on enforcement issues pertaining to IPRs)